What Is a Notional Add Back?
In Australian family law, a “notional add back” refers to assets or money that once existed in the relationship but were used, transferred, or spent by one party before the property settlement is finalised. In certain cases, the court may choose to “add back” that amount to the asset pool as if it still exists—on paper only.
This helps ensure a fair division, especially where one party has acted recklessly or tried to reduce what the other party might receive.
When Do Add Backs Apply?
Add backs aren’t automatic. The court considers them case by case, and only in limited circumstances, including:
1. Legal Fees
If one party uses joint money or matrimonial assets to pay for their own legal costs, the court may “add back” that amount to their share.
2. Waste or Reckless Spending
Spending money on gambling, luxury items, or other careless use of assets may trigger an add back.
3. Disposing of Assets
If a person sells or gives away an asset (e.g. a car, investment, or cash) without the consent of the other party, it may be treated as if it still exists.
4. Post-Separation Spending
If one party drains a joint bank account or uses matrimonial funds to pay off their personal debts after separation, the court may treat that amount as part of their final share.
Example: Lisle & Lisle [2008]
In this case, the wife used $21,000 from a joint account for legal fees. The court added that amount back to her side of the property pool.
The husband used $12,000 from an insurance payout—also for legal fees. That was added back to his share.
The court also found that the husband paid the mortgage using joint funds, while pocketing his full salary. As a result, the judge added $7,800 back to his side to reflect the benefit he received.
These examples show how courts aim to keep things fair when one party uses assets unequally after separation.
Important Notes:
- Not every expense will qualify for an add back.
- The court won’t add back reasonable, everyday post-separation living costs.
- Add backs are only used when it’s fair and equitable to do so.
What Should You Do?
Keep records of spending post-separation
Avoid major asset sales or cash withdrawals
Speak with a family lawyer before moving or using joint assets.
If you’re concerned your ex is hiding or wasting assets, raise it early in your case